Is Fogle Case A Reminder That Child Porn Penalties Can Be Too Harsh?

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The case of former Subway pitchman Jared Fogle should be a reminder that the way the criminal justice system deals with these offenders may be disproportionate in severity to the offender’s psychological behavior, writes Houston lawyer Neal Davis in Texas Lawyer. Child pornography is not a victimless crime; the victimized children were hurt twice: once when the pornography is created, and again as they understand their images might continue to be accessed. The outrage over those crimes “shouldn’t spill over into how the criminal justice system deals with offenders in a way that is inefficient, overly punitive, and non-rehabilitative,” Davis argues. He maintains that offenders should not get off scot-free, but rehabilitation will do more to benefit society overall than just locking them up and throwing away the key.

In some cases, the punishment for possessing or distributing child pornography is as harsh, if not harsher, than if the defendant had committed a sex offense against a child. Simply possessing or accessing a child pornographic image is a third-degree felony that carries a sentence of two to 10 years in prison, a $10,000 fine or both. The charges could increase depending on the amount possessed. Despite these harsh sentences, child porn continues to permeate the U.S. The U.S. Department of Justice said in 2010 that nearly 10 million IP addresses shared such pornography in the previous year-and-a-half. Contrary to popular belief, those who possess or share, rather than produce, child pornography cannot be presumed to be predators who molest children. We also should not assume offenders are hardwired to offend, and incapable of rehab, Davis says.

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